Amendment No. Four to License and Commercialization Agreement
Exhibit 10.102
certain material (indicated by an asterisk) has been omitted from this document pursuant to a
request for confidential treatment. the omitted material has been filed separately with the
securities and exchange commission.
Amendment No. Four to License and Commercialization Agreement
This AMENDMENT NO. FOUR TO LICENSE AND COMMERCIALIZATION AGREEMENT (the “Amendment No. Four”)
is made effective as of December 22nd, 2005 (the “Amendment Effective Date”), and is
entered into by and between AMGEN INC., a Delaware corporation having its principal place of
business at Xxx Xxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000-0000 (“Amgen”) and INTERMUNE, INC., a
Delaware corporation having its principal place of business at 0000 Xxxxxxxx Xxxx., Xxxxxxxx, XX
00000 (“InterMune”). Amgen and InterMune are sometimes referred to herein individually as a
“Party” and collectively as the “Parties,” and references to “InterMune” and “Amgen” shall include
their respective Affiliates. All capitalized terms used herein shall have the meaning given to
them in the Original Agreement (as defined below) unless otherwise defined herein.
Background
WHEREAS, the Parties entered into that certain License and Commercialization Agreement
effective as of June 15th, 2001, as amended (the “Original Agreement”) pursuant to which
Amgen granted certain rights to InterMune relating to the Licensed Products; and
WHEREAS, the Parties now desire to further amend the Original Agreement.
NOW THEREFORE, based on the foregoing premises and the mutual covenants and obligations set
forth below, and for good and valuable consideration, the receipt and sufficiency of which the
Parties hereby acknowledge, the Parties hereby agree as follows:
1. The following shall be added to the Original Agreement as a new Section 2.3(i):
“(i) Amgen hereby grants to InterMune an exclusive [***] license
under Amgen’s entire right, title and interest in and to the
internet domain name <xxxxxxxx.xxx>, with the right to grant
sublicenses (subject to InterMune’s compliance with Section 2.5 of
this Agreement), to link to such domain name solely on InterMune’s
website, and to use such domain name solely in connection with the
Licensed Products in the Territory. InterMune shall reasonably
consider any comments that Amgen or Other Licensees may have with
respect to the <xxxxxxxx.xxx> website and content thereof.
InterMune shall be solely responsible for maintaining the internet
domain name <xxxxxxxx.xxx>, including payment of any domain
name maintenance fees, and for making all content on the
<xxxxxxxx.xxx> website complete, accurate and not misleading
at all times. InterMune shall use commercially reasonable efforts
to prevent any obscene or offensive content, or content that
disparages Amgen, Other Licensees or Licensed
Products, from being placed on or associated with such website
and domain name. InterMune shall Indemnify Amgen and its
Affiliates, agents, directors, officers, and employees from and
*** Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.
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against any and all Losses arising from Third Party claims
resulting directly or indirectly from InterMune’s use of the
<xxxxxxxx.xxx> domain name or operation of the
<xxxxxxxx.xxx> website, including but not limited to the
content thereof. Upon request by Amgen, InterMune will promptly
take all actions necessary to remove any use of Amgen’s name on the
website located at <xxxxxxxx.xxx> to which Amgen objects.
InterMune will also clearly identify itself on the website as the
party controlling the operation of such website.””
2. The first paragraph of Exhibit 2 Amgen Materials (Cell banks and Reference Standards)
(which is attached to Amendment Number 2 to License and Commercialization Agreement dated
December 31, 2004), is hereby amended in its entirety as follows:
“[***].”
This Amendment No. Four is intended by the Parties to amend the Original Agreement only to the
extent of the specific amendment set forth above. This Amendment No. Four, and the Original
Agreement (collectively, the “Transaction Agreements”), set forth the complete, final and exclusive
agreement with respect to their subject matter and all the covenants, promises, agreements,
warranties, representations, conditions and understandings between the Parties hereto with respect
to such subject matter and supersede and terminate all prior agreements and understandings between
the Parties with respect to such subject matter. There are no covenants, promises, agreements,
warranties, representations, conditions or understandings, either oral or written, between the
Parties with respect to such subject matter other than as are set forth in the Transaction
Agreements.
3. This Amendment shall be governed by and interpreted in accordance with the substantive laws of
the State of California and the Parties hereby submit to the jurisdiction of the California courts,
both state and federal.
*** Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.
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4. No amendment, modification or supplement of any provision of this Amendment shall be valid or
effective unless made in writing and signed by a duly authorized officer of each Party.
5. This Amendment may be signed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
6. InterMune, Amgen, Valeant Pharmaceuticals North America and Valeant Pharmaceuticals
International have entered into that certain Consent to Assignment Agreement dated November 23,
2005 (“Consent”). The Parties acknowledge and agree that this Amendment shall be deemed a part of
the Agreements, as that term is defined in the Consent.
IN WITNESS WHEREOF, the Parties have executed this Amendment No. Four in duplicate originals by
their duly authorized representatives as of the Amendment Effective Date.
| AMGEN INC. | INTERMUNE, INC. | |||||||
By:
|
/s/ Xxxxx X. Xxxxxxx | By: | /s/ Xxxxx Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxxx, Esq. | Name: Xxxxx Xxxxxx | |||||||
| Title: Vice President, Licensing | Title: Senior Vice President & General Counsel | |||||||
| Date: 12/22/05 | Date: 12/22/05 | |||||||
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